21 February 2016


Most jurisdictions have a rental board that deals with residential landlord-tenant disputes. The board has its own rules, its own forms, and its own schedules. It's meant to be accessible without lawyers to both landlords and tenants (though lawyers can certainly be helpful). 

But a vast number of landlord-tenant disputes involve commercial premises. Where do those landlords or tenants go to seek justice? What is a landlord's recourse when a tenant stops paying rent or refuses to leave rented premises after a lease expires? What can a tenant do when a landlord locks him out of premises over which he holds a lease? Who ya gonna call? In Ontario the answer is: the Superior Court of Justice. 

The Superior Court is always the place to go when there's no other place else you're supposed to be going legally speaking. So you don't go there for residential landlord-tenant matters, because there's already an administrative tribunal set up for that. But the only thing regulating commercial leasing is the common law of contract, plus what's known as the Commercial Tenancies Act, R.S.O. c. L.7.

That Act generally applies to all tenancies to which the Residential Tenancies Act, 2006 does not apply. Unfortunately the Commercial Tenancies Act isn't the easiest Act to read. It's got a lot of really old language in it that's never been "modernized," so that you're left with provisions like: "Every person has the like remedy by distress and impounding and selling the property distrained in cases of rents seck as in the case of rent reserved upon the lease." And no, "rents seck" isn't a typo, it comes with the Middle English "rent sek" which in turn comes from the Anglo-French "rente seque" meaning "dry rent." I highly advise you to retain a lawyer to advise you on your rights and obligations under the Act.

The Commercial Tenancies Act contains lots of useful provisions for both commercial landlords and tenants, though it's definitely not a complete code of procedure governing commercial tenancies. The gaps are filled in by the common law of contract. For landlords, there are provisions like s. 58 which provides that a tenant will owe a landlord twice the monthly rent for every month during which he illegally overholds a property beyond the expiry or termination of a lease. For tenants, there are provisions like s-s. 32(2) which permits a sub-tenant to serve a statutory declaration on a landlord who is seeking to seize tenant goods for non-payment of rent confirming that the tenant has no interest in the property of the sub-tenant, and that the sub-tenant's property therefore shouldn't be seized.

Because the Superior Court is a court of "original inherent jurisdiction," you can ask it for any remedy you think to be just. You might also have recourse to the Small Claims Court for money or property disputes under $25,000 in value involving commercial leases, but you can't get orders from that court forcing people to do or not so things - like evicting a tenant - you can only get money or property returned. So Small Claims Court has limited use in commercial lease disputes. 

The key to happy commercial leasing is good legal advice (for both the landlord and the tenant) prior to signing a lease. Such advice can be a real bargain compared to the expense of going to court later to fight over whether or not the terms of the lease have been breached, and what remedies should be granted for that breach. But be assured that the Superior Court of Justice, the common law, and the Commercial Tenancies Act do provide for robust remedies for both landlord and tenants facing commercial leasing injustices. 


I'm often asked by my criminal defence clients: "should I plead guilty? What you do think I should do?" Unfortunately, these are such personal decisions, potentially have such great ramifications for my clients' lives, that I unfortunately can't give them direct answers to those kinds of questions.

The best I can do is explain to them: (1) all of their options (sometimes there are more options than simply plead or don't plead), (2) the likely consequences of their options, and (3) that usually they don't have to make an instantaneous decision about pleading. They can take a few days or weeks to talk it over with friends and family, and ask me follow up questions. The last thing I want for any of my clients is for them to later regret whatever decisions they arrive at. 

There are five primary factors I tell my clients to consider when deciding whether or not to plead.

1. Did you actually commit a criminal act? For clients who are completely innocent of any wrong doing, I can't ethically help them plead guilty to things they didn't do. Even though they might be offered good plea "deals" and even though those deals would get their matters out of the way so that they could move on with lives. I (and other criminal defence lawyers) just can't do that. But there's some nuance to this question. Even if you didn't do exactly what is alleged factually or legally against you, you might have still committed a criminal offence, and so you might still be able to properly plead to something. 

2. Can you live with the likely consequences of a guilty plea? If the consequence of a plea will be a criminal record, and you absolutely can't live with that - perhaps because it would ruin your career - then you probably won't want to plead. Likewise if there will be a consequence like a two year driving suspension that you can't live with, again you'll want to think twice before pleading. But if the consequences won't ruin your life - maybe you'll be getting a discharge that avoids a criminal record, or receive a fine that avoids jail - that a plea might be a good idea.

3. Can you financially and emotionally afford to go to trial? The answer to this question might depend on the kind of charges you are facing. Going to trial on an impaired driving charge might only cost you a few thousand dollars in legal fees, and the time waiting for a trial date could be under a year. However, going to trial on a drug conspiracy might involved tens of thousands of dollars in legal fees, and many years of legal proceedings as the case drags through first a preliminary inquiry and then possibly a multi-week trial. Some of my clients just "want to get it over with" and move on with their lives. Whereas others are willing to be patient, and spend a year or more waiting to see how things play out. 

4. Is the sentence after trial likely to be much worse than the sentence on a plea? The rule of thumb is that a guilty plea will save you about 1/3 off your sentence. But sometimes it may be a lot more of less. Like the difference between getting a criminal record, and not getting a criminal record. Thus you and your lawyer will need to carefully evaluate the "bad outcome" risk of going to trial. If the Crown is seeking two years imprisonment on a plea, and the worst case scenario after trial might be 2 1/2 years, then that isn't a lot of risk to take. But if the Crown will take a fine on a plea, and will want three months in jail after trial, then that is a huge difference. 

5. What are you chances of winning a trial? This is a question to which your lawyer won't be able to give you precise odds, but she or he should be able to tell you in general terms whether you have a defence to present. Sometimes the defence might be very "technical" (like that an officer wasn't properly qualified to administer a particular test), sometimes it might be based on a violation of your "rights" (like that there was no legal power to search you car), and at other time it could simply be based on your testimony needing to be believed at trial that you "didn't do it." Your lawyer should be able to tell you if you have good or bad chances at trial, based on the evidence the Crown plans to present against you, and the legal defences you'll be able to raise. 

For any of the considerations, the key point to remember is that you should get some legal advice prior to making the decision to plead or not plead. That advice might be from your own privately retained lawyer, from a lawyer paid by legal aid, or from duty counsel in the courthouse. Where you get the advice is less important than the fact that you need such advice prior to pleading or setting a trial date. 


You've just lost a trial or a motion in your law case. You're angry. You're disappointed. Your gut urge is to continuing seeking justice in an appeal!

I get that. My practice focusses on appeals: civil, criminal, family. I use my professional skills to evaluate clients' potential appeals, and explain to them their likely prospects of success prior to my agreeing to formally file appeals for them. For the majority of those who approach me, I agree to take on their cases because there appears to be something worth appealing. 

Where there's a reasonable chance of success in an appeal, and the overall potential appeal outcome would be in a client's best interests, I'm more than happy to vigorously use all my experience to obtain the best possible results before whichever appeal court a client might need to go to: Ontario Divisional Court, Ontario Court of Appeal, Federal Court of Appeal, Tax Court of Canada, Supreme Court of Canada. Other lawyers refer their appeals to me, in part because it's often best for a new set of eyes to take an objective look at what happened at trial when evaluating an appeal. 

But where an appeal stands no real chance of success, or the client would expend considerable resources on an appeal for an outcome that isn't likely to materially assist her or him at the end of the day, I feel ethically bound to advise that an appeal would not be in the client's best interests. I'll try to give the client other alternatives to an appeal in order to still get what the client wants and needs through other means. I'm in the business of telling clients how they can ultimately get what they want, rather than in frustrating their aspirations. But an appeal might not be the best way to get a particular result, and I'll readily tell clients if they're wasting time thinking about an appeal. 

To be clear, I'm not in the business of doing "easy" appeals. There's no such thing. The burden is always on the appellant to demonstrate to the appeal court why the lower court made an error, and why the appeal court should be bothered to do something about that error. 

Some clients won't like that answer, and will either find other lawyers to do those dubious appeals, or will undertake to do them themselves. That's their right. But everyone needs to understand that appeals are fundamentally different from trials or motions. An appeal is not just a second kick at the trial or motion "can."

Family appeals are likely the most common area where after evaluating an appeal, I'm required to tell clients that an appeal isn't a good idea. That's because the order may be very factually based, and the best tactic might be for the client to just wait six months and then bring a much less expensive "change of circumstances" motion to a lower court to change in the adverse order, rather than expending much more money and the same six months pursuing an appeal. 

Here are my top three considerations that you should take account of prior to approaching a lawyer to undertake an appeal:

1. Do you really have an error of law to appeal? Appeal courts aren't there to retry cases on the facts. They'll defer to the opinions of trial judges on factual issues, since they are the ones who hear the live witnesses, and can best judge credibility. So if your family trial case came down to mother and father testifying, and trial judge believed father, and rejected the testimony of mother, that by itself can be difficult to appeal. Whereas if the trial judge excluded all manner of relevant documentary evidence, refused to consider expert evidence, and generally misapprehended the evidence, that can be a winner appeal. 

2. Will the likely outcome of an appeal get you what you want? A typical best case outcome from an appeal is a new trial, rather than giving you everything you were originally seeking at trial. If you already went through a two week trial, and can't emotionally or financially bear the thought of doing that again, then an appeal might not be for you. There are more discrete issues that an appeal court might completely fix, like erasing a costs order, fixing serious math errors made by a trial judge, or reducing a sentence. And sometimes you goal might simply be a new trial. You just need to be realistic about what an appeal court will be willing to fix, even if there were errors in the lower court. 

3. Do you have the resources to pursue an appeal and its possible outcome of more litigation? Appeals are even more legally technical than trials. You really need a lawyer to successfully pursue one. To hire that lawyer, you might need greater resources than you expended in the lower court for the motion or trial. Appeals don't consume a lot of in-court time - most hearings only take about 1/2 a day - but they do take up a lot of preparation time in writing facta of argument and preparing the "appeal books" containing the exhibits and transcripts of trial evidence. Plus, you'll need to pay for those trial transcripts. Lastly, if you do get an appeal result ordering a new trial, you'll need to be able to fund that trial as well. 

Yes, justice should be more accessible and inexpensive. But believe it or not, it's partly because courts bend over backwards to protect litigant rights that justice becomes so difficult to pursue - meaning, courts will not cut off a party wanting to present lots of evidence, or extensively cross-examine the other side's evidence, or make very detailed legal argument. All that takes time. And legal time costs money.

I do think it's always a good idea to have a lawyer give you professional advice on your appeal prospects. Getting an appeal legal opinion will be much less expensive than hiring someone to actually do the appeal. You might be able to get that opinion from your trial lawyer, or you might want to go to a lawyer who concentrates on appeals. But either way, make sure you act quickly as appeal limitation periods are usually only 30 days after a trial or motion judgment, and could be a short of 7 or 14 days for some kinds of cases. 

Read More About How An Appeals Lawyer Could Help You


The first - and perhaps most important - decision anyone is faced with when contemplating pursuing a civil claim against someone else is: which court should I be proceeding before? If life and the law were simple, there would only be one court that would deal with all problems. 

But unfortunately as most of us have discovered by adulthood, life is never as simple as our younger selves hoped it would be. And those who need to brave the court system likewise soon discover that there are a complex multiplicity of courts and tribunals out there, any one of which might be "the place" you're supposed to go to seek a solution to your particular legal problem. Showing up at the wrong one can be like arriving at the wrong birthday party, where you're told there's no cake for the likes of you!

Although Ontario also has criminal and family courts in addition to a plethora of administrative tribunals, for the purposes of any "civil" claim the sole choices are between the Small Claims Court and the Superior Court of Justice (unless the claim is one of the few going to the Federal Court). Confusingly, the Small Claims Court is actually an arm of the Superior Court, but where "Deputy Judges" preside over a less complex procedure involving less risk for the losers and also lesser rewards for the winners. 

The key things to know about the Small Claims Court are that:

1. You can only demand damages up to $25,000. You can still bring a claim worth potentially much more than that before the Small Claims Court, but you'll be required to "abandon" the excess. 

2. You can only demand the return of property up to a value of $25,0000. 

3. You can't demand any other kind of remedy, like declaratory or injunctive relief, meaning you can't ask the court to force another person to do or not do something, or declare that something is or is not the case - like that a law is unconstitutional. 

4. You can only obtain "costs" (sometimes awarded to the winning party) of 15% of the value of all claims pending before the court, even if you spent much more on legal fees. 

5. Your legal fees charged by a lawyer will be much, much cheaper in Small Claims Court than in the Superior Court of Justice, because of the simpler and quicker procedure involved. 

What this means to choosing between civil courts is that if you're definitely seeking a remedy other than money or property, you've got no choice - you're going to the Superior Court of Justice. If you're seeking money or property worth less than $25,000, then again the choice is a no brainer - you're going to the Small Claims Court. 

The zone of claims where the choice gets tricky is for those worth a bit (though not a massive amount) over $25,000. My rule of thumb is that any claim worth under $40,000 should choose to go to the Small Claims Court, since you're probably going to spend at least another $15,000 in legal fees going to the Superior Court of Justice. Even claims up to $50,000 might wish to consider cutting their numbers in half to go to Small Claims. 

Over $50,000, and Superior Court of Justice is likely the way to go. If you claim $100,000 or less there, you're entitled to take advantage of what's known as a "simplified procedure" - though it's still a lot more costly and time consuming than Small Claims Court procedure. 

But before you settle on the Superior Court of Justice route for what you're convinced is your very valuable claim, get some legal advice about claim valuation. You might very legitimately believe that you've suffered a great injustice at the hands of the plaintiff, but the burden rests solely on you as plaintiff to present proof on a balance of probability of quantification of damages. This means proof of what you've lost, and what is a fair amount payable by the defendant to "make you whole" again. 

Figuring out damages numbers is easiest when you're fighting over a thing - like a vehicle - with a well known value. Damages are more difficult to quantify for less well agreed upon numbers, like the value of a broken arm. Damages can become very difficult to put a number on when they are intangible - like damage to reputation due to defamation. 

You definitely don't want to "win" after a lengthy and expensive trial, only to be awarded $1 - or any figure that is less than the amounts you've spent on pursuing the case. 


Not all litigation is about money. As a result, the advisability of some court action like criminal defence or family proceedings can't simply by evaluated by comparing the likely legal expense versus the likely amount of money to be recovered or saved. Defending your freedom or your family can be priceless.

But outside the criminal, family and a few other speciality areas of the litigation world, most litigation is about money at the end of the day. Thus whether you call it property litigation, construction litigation, contract litigation, tort litigation, or estate litigation, it can usually all be fit under the common umbrella of "civil litigation" and will mostly result in a monetary reward for or against you.

It's thus easier to measure success in civil litigation than in non-monetary types of litigation. Success is largely a function of getting (or saving) more than you spend to get that result. It's simple economics. As litigation costs rise, so needs the amount of money likely to be recovered to grow ever bigger in order for the effort to be worthwhile. Low leal costs can justify pursuing or defending quite small sums - such as in small claims court - whereas astronomic predicted costs can only justify pursuit or defence of astronomic sums.

I thus offer you five commandments for cost-effective civil litigation which will maximize your chances of coming out on the winning side every time - meaning spending less than you get or save.

1. CHOOSE SMALL CLAIMS COURT IF YOUR DEBT IS LESS THAN TWO TIMES THE LIMIT OF SMALL CLAIMS. Small Claims Court is much, much cheaper than Superior Court, so make sure you go to Small Claims if the amount you're claiming is anywhere under double the limit of Small Claims. Small Claims Court uses a much simplified procedure than higher courts so that you get to trial much more quickly, which will save significantly on legal fees. This means in Ontario at anything under $50,000 you should be looking at Small Claims Court. True, as a plaintiff you'll be limited to getting $25,000 plus costs, rather that $45,000 or something similar. But you'll potentially save tens of thousands in legal fees. If you spend $5,000 to get $25,000 in Small Claims, you'll be far better off at the end of the day than spending $40,000 to get $50,000 in Superior Court. It's simply a question of math.

2. THINK TWICE BEFORE COMMENCING ACTION IF YOUR LEGAL FEES COULD APPROACH THE VALUE OF YOUR DEBT. This means that if you believe you're reasonably entitled to $75,000, but you might spend $60,000 in legal fees getting that $75,000 judgment, it just might not be worth it. First, you might lose your case outright. Second, you might not get the "costs" against the other side that you are hoping for. And third (most importantly), the defendant might be judgment proof - meaning there are no assets against which you can collect your winning judgment. If your potential claim value is in the millions of dollars, it will be far easier to justify legal costs than for a $100,000 claim. The legal work involved in pursuing each claim might be similar, but fees will be far easier to justify where the amount is dispute is many times the likely legal fees.

3. CONSIDER IF YOU HAVE A PROVABLE CAUSE OF ACTION OR DEFENCE. Although you might firmly (and correctly) believe yourself to be morally in the right, if you can't legally prove a party you are suing is at fault in your claim (or can't adequately defend against a claim of fault made against you), you aren't going to succeed in your case. You need evidence. Cold hard documents work best. But expert reports, or even neighbours to testify in backing up your story could help. If it's just your word against the word of the other party, it's time to worry (regardless of whether you are plaintiff or defendant).

4. ENSURE YOU CAN PROVE (OR DISPROVE) YOUR DAMAGES. Proving the other guy is "at fault" isn't enough. You also need to prove what he owes you. This means that even if its abundantly clear that a party is liable, proving only nominal damages (which might be as low as a dollar) lead one to wonder what's the point of going to court? You might feel justifiably outraged about a situation, but that by itself won't get you "punitive" damages in Canada. Generally you'll be stuck with compensatory damages, meaning damages sufficient to place you back in the position you were in before the other party did what he or she did. Thus you might not like that you neighbour pushes his driveway snow five centimetres on to your property when he ploughs after each winter storm, but how are you going to quantify the loss this supposedly caused you? By comparison, wind up in an auto accident and lose an arm, and everyone will agree you're owed significant money by a party at fault, even if there remains debate over exactly how much.

5. NAME ALL REQUIRED PARTIES. Thus avoid suing small corporations by themselves; rather, try to add individuals like the President of a corporation as a party so long as there is a plausible legal basis for doing do. This avoids a named party claiming that other unnamed parties are really the ones at fault, and further avoids you possibly getting a hollow judgment against a shell corporation.


The Three-Thirds Rule

I once read somewhere that 1/3 of all cases settle after getting lawyers involved but before any court action is started, another 1/3 settle after the start of court action but prior to the case going to trial, and another 1/3 are only resolved during or after the trial (or motion or application or other type of contested hearing). I'm not sure if these figures are accurate for Ontario courts, but I do believe they provide a good guide for determining when and how you should resort to professional legal help and the courts when you're involved in a contentious legal dispute.

Make sure you take full advantage of that first 1/3 of settlements without court chance before you rush off to court. And even when you are in court, don't rush off to trial without maximizing that second 1/3 of settlements prior to trial chance. 

A Modest Legal Investment at the Pre-Court Stage

Some disputes are always going to settle without any lawyer involvement, because all parties to the dispute are reasonable, and there's not much need for legal advice about respective rights. These could involve business or personal debts, or simpler disputes over property rights. 

Other disputes might still have reasonable parties involved, but require a little nudge from the lawyers in the advice department because of the stakes at play. A good example is family law situations where, regardless of how amicable the split, spouses will need solid legal advice on asset split, spousal and child support, and child custody in order for any agreement arrived at to be later defensible in court if one of the parties subsequently decides he or she is unhappy with the arrangement. 

Still other conflicts could need a lot of lawyer involvement prior to the court phase in order to reach a settlement, with the lawyers playing the roles of negotiators, mediators and advisors on next steps. You should always bear in mind what is the best alternative to a negotiated agreement. That extra lawyer involvement at the pre-court stage will usually come at a fraction of the price of lawyer-led court action. 

A couple of hours of lawyer time, or even a dozen hours depending on stakes, can be a total bargain if it solves your legal issue for you. As soon as the court action ball starts rolling, the lawyers will start to burn through time. Court action is expensive not because of the fees the courts charge - they only amount to a few hundred dollars, with your tax dollars covering the vast majority of court judge, clerk, reporter and building time - and not even because of lawyer hourly rates, but because of the amount of time lawyers need to devote to becoming properly prepared for court, and then appearing for you in court. 

Four Tips for Deciding When to Proceed to Court

1. Wait as long as is humanly possible. Even if it feels almost impossible to wait any longer, because your situation has become intolerable, it may pay to wait even longer. Once you pull that court action trigger, the positions of parties harden, lawyer bills shoot up on both sides, and it becomes difficult for any party to disengage from the action. 

2. Start court action if there is a true stalemate in negotiations. I'm not saying you should wait forever to go to court. Eventually, enough is enough, and sometimes initiating court action may break a stalemate, causing the opposing party to immediately settle in order to avoid legal fees and the possibility of losing in court. But you shouldn't count on that settlement. 

3. Start court action sooner if the stakes are so high that they justify the cost, and you have the resources to fund such action. If you're fighting over $10,000, you should be much more cautious over initiating court action than if you're fighting over $1,000,000. In the first fight, your legal fees could exceed the sum in dispute. In the second fight, the legal fees might be just a few percent of the amount of loss. Non-monetary high stakes that also could justify sooner court action might involve child custody arrangements, or if your own personal liberty is at stake. 

4. Immediately start court action if your position is going to be significantly prejudiced by waiting. If assets that could compensate you for your loss or evidence that can prove that loss is at risk of disappearing, because the opposing party might hide them or destroy it, you might need to immediately go to court to freeze those assets and preserve that evidence. A Mareva Injunction or Anton Pillar Order are interlocutory remedies that a court can give you to preserve assets and seize evidence. An injunction can generally force a party to do or not do something on a temporary basis when there is a risk that you will suffer irreparable harm if the injunction is not granted. 


Other than being charged, making or not making bail may have a greater affect on the outcome of your criminal case than any other factor. Greater than the evidence investigators claim to have amassed against you. And even greater than what transpires at your trial.

Our constitutional law is rife with assertions that you are presumed innocent until proven guilty, and that you've got a right to a trial within a reasonable time. There's a less well known provision contained in s-s. 11(e) of the Canadian Charter of Rights and Freedoms which affirms that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause." But don't make the mistake of thinking this provision means that you're almost guaranteed to make bail if you don't have a horrible criminal record and aren't already out on multiple other bail releases.

The Crown frequently demands that people accused of offences be detained in custody pending trial. Even for people with no criminal records. Even for people not already out on another bail. And even for people not accused on the most serious criminal offences. The ultimate release decision rests with the Court, not the Crown, but if the Crown demands your detention then you're facing a contested bail hearing. You should make sure you have a lawyer for such a hearing, regardless of whether it is legal aid duty counsel, or a privately retained lawyer (I serve in both roles from time to time).

Unfortunately, Parliament has set up a complex set of provisions in the Criminal Code governing the tests which must be met to make bail, the evidence admissible at a bail hearing, and on whom the onus falls - Crown or defence - to establish the tests. What this means for you or your loved one who is locked up awaiting a bail hearing is that you need a strong bail plan to present to the court, and you need evidence to back up it. Promises simply to behave usually just won't cut it alone.

So the tips I can offer you to maximize your chances for that get out of jail free card are:

TIP #1: Contact one or two "sureties" who can be present at the bail hearing to vouch for you, and agree to supervise you during your release pending trial. They're like civilian jailers, who keep an eye on whether you're obeying your conditions, and pledge to call the police if you breach. They also usually pledge a sum of good conduct money, but usually without any upfront deposit. If you're able to, start calling potential sureties as soon as you've been arrested, as you might have trouble getting hold of them, and everyone you call might not want to act. Or ask your lawyer to make the calls.

TIP #2: Figure out if you have some cash available for a bail deposit. While we don't do massive bail bonds in Canada as happens in the U.S. (where a bondsman essentially lends you a large amount for bail), the courts do always appreciate some cold hard cash as a behaviour incentive while on bail. It's almost always required if you're from out of province or out of country from the place you're accused of committing an offence in. Any amount from $1,000 to $100,000 can be useful (higher amounts of cash are possible, I suppose, but I have only personally seen no deposit sureties go higher, like when someone pledges a house).

TIP #3: Present a release plan that will keep you out of trouble while on bail. This plan could range from anything like where you will be working or attending school, up to a curfew, and even 24 hour per day house arrest with never leaving the house without your surety. Generally, the more serious the accusations, and more of a record or other releases you have amassed, the more the need for stricter release conditions.

TIP #4: Gather together documentary evidence to support your sureties and release plan. So if you claim to be working somewhere full time, ask your boss for a letter to confirm this. If your mother intends to pledge $20,000 in your favour for your release, obtain her title documents for her house proving what she owns, how much it is worth, and how much of a mortgage sits on it - great precision here isn't required, but something is usually necessary beyond the simple word of your surety.


Everyone agrees the "best interests of the child" test trumps all in child protection proceedings. However, the innumerable child protection court cases which reveal five versions of children's best interests - the Children's Aid Society (CAS) version, the Office of the Children's Lawyer (OCL) version, the father's version, the mother's version, and the court's version - demonstrate the often highly subjective nature of children's best interest assessments. Child protection law is more "art" than "science." Which is why expert reports, while helpful, are never definitive in presenting the one ideal plan of care that will be in the children's best interests. 

If one even looks at basic children's law principles like children are generally better off residing with their parents, parental contact should be maximized in access situations, and wishes of older children should be taken into account when making best interests assessments, competing views of best interests quickly turn the conversation into a quagmire if CAS insists neither parent is fit, both the mother and father insist it is the other parent who is unfit, and the OCL expresses the children's views that they want to live equally with each parent. 

The demand you hear most often from child protection judges is for more evidence of best interests. Judges don't want to guess, they want to decide on facts. So if you - whoever you are - are putting forward a particular plan of care for a child, you're going to need some cold, hard facts to back up why that plan is feasible, rather than just wishful thinking. 

Rules of evidentiary admissibility are pretty loose in child protection, so you don't need to get too hung up on legal formality. Letters written by relatives, or social workers, or medical professionals, or addiction counsellors can all work, though usually they should be appended as exhibits to someone's affidavit sworn to present the overall version of the facts. But each of those people don't need to file their own affidavits, and usually would not be required to attend court to testify. Getting your own expert witness would be best of all, but don't make the mistake of hiring an expert, and then rejecting his findings. 

Showing up in court asserting your rights as a father or mother, arguing that a particular plan is in your children's best interests, and having no evidence whatsoever to back you up other than your own promises, usually isn't going to cut in in the face of conflicting CAS sworn evidence. 

As a lawyer who represents fathers and mothers in child protection proceedings, I firmly advocate for my client's rights, and their views of what is in their children's best interests. However, my clients need to give me evidence that permits me to sell the court on the correctness of their arguments. So as soon you as father or mother learn that CAS is showing interest in your family, you should start compiling evidence that will assist you and your children in court much later.